Prosecutor’s Office of Bosnia and Herzegovina v. Radovan Stankovic

Court	Court of Bosnia and Herzegovina, Section for War Crimes, Appelate Division, Bosnia and Herzegovina
Case number	X-KRŽ-05/70
Decision title	Appeal Verdict
Decision date	28 March 2007
Parties	Prosecutor’s Office of Bosnia and Herzegovina Radovan Stankovic
Categories	Crimes against humanity
Keywords	crimes against humanity, torture, enslavement, imprisonment, rape, sexual violence
Links	Appeal Verdict

Summary

Radovan Stankovic, member of a Serb battalion during the war in Bosnia and Herzegovina (1992-1995), was initially indicted by the ICTY Prosecutor for his alleged involvement in crimes against humanity in 1996 and 1999. However, his case was ultimately referred to the Court in Bosnia and Herzegovina in 2005.

He was charged with crimes against humanity, as he was accused of having set up a detention centre for (often underaged) women, having incited other soldiers to rape detainees, and having coerced several detainees into forced labour and sexual intercourse. The Court heavily relied on witness statements to determine that he was guilty of four of the six charges, stating that the statements were clear and consistent. Stankovic was sentenced to sixteen years' imprisonment on 14 November 2006.

The prosecution appealed against the sentence of 16 years' imprisonment and the acquittal of one of the charges. Stankovic himself basically contested all the Court’s findings, most notably stating that the witness statements were false and fabricated. The Appellate Panel of the left intact almost the entire verdict, though it did raise the sentence to 20 years imprisonment. Shortly afterwards, Stankovic escaped from jail. He was recaptured in January 2012. His five years on the run cost him an additional two years of imprisonment.

Procedural history

Radovan Stankovic was indicted by the ICTY prosecutor, together with seven others, on 26 June 1996 (amended on 7 October 1999 and 20 April 2001). After his apprehension, an indictment charging him individually was filed on 3 March 2003 (amended on 8 December 2003). On 17 May 2005, the Referral Bench of the ICTY referred the case to the Court of Bosnia and Herzegovina (BiH). On 1 September 2005, the Appeals Chamber dismissed Stankovic's appeal against the referral.

The Court of BiH found Stankovic guilty for crimes against humanity (enslavement, imprisonment, torture, rape: Articles 172(1)(c), (e), (f) and (g) of the Criminal Code of BiH) by:

Establishing a detention centre ("Karaman’s House"), detaining at least nine female persons and inciting soldiers to rape them.
Compelling detainees to forced labour, inside and outside of the detention center.
Repeatedly raping a detainee, compelling her to forced labour at several locations and having her witness him raping her under aged sister.
Raping and abusing the under aged sister.
Raping a detainee at another detention centre.
Forcibly taking a female patient from a hospital in Foča and raping her.

After the Prosecutor had abandoned the fourth charge at a main hearing on 27 October 2006, the Court of BiH convicted Stankovic for the first four charges, acquitted him from the sixth due to lack of evidence, and sentenced him to sixteen years' imprisonment on 14 November 2006. Both Stankovic and the Prosecutor appealed (the former against the four convictions, the latter against the acquittal for the sixth charge).

Related developments

On 25 March 2007, Radovan Stankovic escaped from the Foča prison where he was serving his sentence. His brother Ranko was sentenced to two-year imprisonment for facilitating Radovan’s escape. Interpol issued a warrant for Radovan Stankovic’s arrest and he was apprehended on 21 January 2012. On 24 December 2012, he was sentenced to two years' imprisonment for using force while escaping.

Legally relevant facts

During the war in the Republic of Bosnia and Herzegovina (RBiH), Stankovic was a member of the Miljevina battalion in the period between April 1992 to February 1993.

He was accused of having set up, together with others, a detention centre for women in August 1992 (‘Karaman’s House’ or ‘the Brothel’), where they forced several detainees into sexual intercourse and forced labour, under repeated insults and violence. Also, he was alleged to have incited other soldiers to rape and abuse the detainees, of having detained one of the detainees at more than one location until early November 1992, and of forcibly taking a female patient from a hospital in Foča and raping her in his apartment, after which he returned her to the hospital.

These acts were allegedly carried out as part of a widespread and systematic attack of the army of the Serb RBiH, police and paramilitary formations against the non-Serb population of the Foča Municipality.

Core legal questions

Stankovic most significantly appealed against the fact that the first instance panel had accepted as proven facts established by the ICTY, as he considered this to be a violation of the equality of arms and the principle of immediacy of criminal proceedings Also, the defence argued that the verdict was exclusively based on testimonies of protected witnesses and that witness statements had been fabricated and false. (p. 4).

The prosecution appealed against the sentence and against the acquitting part of the first instance verdict (pp. 4-5).

Specific legal rules and provisions

Articles 3, 4 and 172(1)(c), (e), (f) and (g) of the Criminal Code of Bosnia and Herzegovina (CC BiH).
Article 2.2 of the BiH Constitution.
Article 7(1) of the European Convention of Human Rights.
Artcle 15(1) and (2) of the International Covenant on Civil and Political Rights.
Article 5 of the ICTY Statute.

Court's holding and analysis

The Prosecutor's appeal against the acquitting part of the verdict was unsuccessful, since the Appellate Panel found the evidence to be too imprecise about inter alia the identity of the perpetrator to establish beyond doubt Stankovic's guilt. However, he did successfully appeal against the sentence: the Appellate Panel considered 20 years of imprisonment to be more appropriate and reflexive of the gravity of the committed crimes (pp. 16-17).

The Panel rejected all of the defence’s grounds for appeal, mainly because it did not consider that the first instance Court had - by accepting the facts established by the ICTY as proven - influenced Stankovic's right to a fair trial. The facts did not establish criminal responsibility, but merely established the wider context of events (p. 9).

Further analysis

The case of Radovan Stankovic was the first case to be referred to the Court of Bosnia and Herzegovina by the ICTY. Within legal doctrine, the desirability of this development has been discussed. Stankovic’s escape was considered by many to be a setback for the endeavour to refer cases to courts of countries were the human rights violations occurred. A commentary on the ICTY jurisprudence regarding the atrocities at Foča has been provided by Matteo Fiori. Also, the fact that the trial was closed to the general public and the press gave rise to discussion.

Instruments cited

European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, 4 November 1950.
International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966.
Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), UN Security Council, 25 May 1993 (UNSC Res. 808).

Criminal Code of the Socialist Federal Republic of Yugoslavia, 28 September 1976.
Criminal Code of Bosnia and Herzegovina, 27 June 2003.
Constitution of Bosnia and Herzegovina, Parliamentary Assembly of BiH, No. 327/09 26, Sarajevo, March 2009.

Additional materials

The Court provided a case information sheet, including press releases. The media commented on the case being referred to the War Crimes Chamber of the Court of BiH. The fact that Stankovic has shown ‘courtroom defiance’, both at the ICTY and at the Court of BiH, caught media attention.